Cannizzaro concedes office failed to turn over key evidence

When Ronald Warner went to trial last year for shooting a man in the leg in broad daylight two years ago, his attorney was missing some key information.

Namely, he didn’t have a police report that said the victim first told New Orleans detectives he had no idea who shot him. He also didn’t have the transcript of a 911 call made by a bystander who called police after spotting the man bleeding on a curb.

“OK, can you ask him who shot him?” the dispatcher asked.

“She just said you know who shot you?,” the bystander asked the victim. “No. He say no.”

An Orleans Parish criminal court judge last week tossed Warner’s conviction on a battery charge after Orleans Parish District Attorney Leon Cannizzaro’s office admitted to violating the law by failing to turn over the evidence.

It marked a rare concession for Cannizzaro’s office, which has spent far more energy defending its actions or those of prior prosecutors over allegedly concealed evidence favorable to a defendant.

Among critics, some of them on the U.S. Supreme Court, the Orleans DA’s office has established a reputation for violating defendants’ rights to exculpatory evidence, with allegations centered largely on Harry Connick’s three-decade tenure as district attorney.

Cannizzaro’s office is still dealing with appeals of a few high-profile cases from that era. In the meantime, the DA claims to be running a tighter constitutional ship in heeding Brady v. Maryland, the 50-year-old U.S. Supreme Court ruling that demands prosecutors turn over any evidence favorable to the defense.

But defense attorneys have disputed that assertion. Cannizzaro’s office has faced criticism mostly for turning over information at the 11th hour, and there are accusations of Brady violations in a handful of high-profile cases prosecuted under his watch.

Most notably, a judge in 2010 found that his prosecutors withheld a jailhouse informant’s plea deal and a videotaped interview with the sole eyewitness in the capital murder case against Michael “Mike Mike” Anderson in a 2006 Central City massacre that left five teenagers dead. The judge threw out that conviction.

But the action last week appears to be among few cases in which his office has raised its hand quickly to admit an unconstitutional lapse; that is, that the evidence in the case was “material.” In court last week, senior prosecutor David Pipes simply conceded the error, and Buras granted a re-trial in the shooting case against Warner.

In the Anderson case, prosecutors argued that the withheld information wouldn’t have changed the outcome, said Cannizzaro spokesman Christopher Bowman.

“The position of the office in Anderson was that, yes, you should have had the tape, but it doesn’t merit a new trial. But this was a different situation,” Bowman said. “It was an error that when it came to our attention we quickly corrected it. We acknowledged it and we stipulated to it. When we realize there was a mistake, we don’t wait around. We don’t sweep it under the carpet.”

Still, it appears the missing police report only came to light because of the separate gun case pending weapons case against Warner stemming from the same incident.

Whether the lapse was intentional or not remains uncertain.

“It is very hard to tell. It’s confusing,” said Colin Reingold, a public defender now assigned the case.

Bowman said the error was the result of confusion over two police reports that both appeared to be the “initial” report. Warner’s attorneys got one but not the other.

“I don’t have any reason to suspect there was malicious intent or anything,” said Miles Swanson, who represented Warner at trial. Still, he said, “If I had had that report in which (the victim) initially said it wasn’t Ronald, I’m sure I would have asked him about it.”

Warner was accused of shooting Ronald Burton in the thigh at 11:44 a.m. at France and North Villere streets in the 9th Ward on July 11, 2011.

At trial Burton denied that it was Warner, now 34, who shot him. Prosecutors turned on him, impeaching his testimony with a statement he had made to police and his identification of Warner in a photo lineup. The missing evidence would have helped restore Warner’s credibility, Reingold said.

According to that first report, Burton “stated that the unknown black male just walked up to him (without saying a word) and shot him once. He advised that the subject then fled on foot.

“Mr. Burton added that he didn’t know the identity of the subject or why the subject shot him.”

For the time being, at least, Warner isn’t going anywhere. The same jury that convicted him of simple battery — a lesser charge than the aggravated battery prosecutors had sought — also got him on a pair of drug counts, after a search of his girlfriend’s house turned up cocaine and heroin.

Criminal District Chief Judge Camille Buras tossed the battery conviction but refused to drop the drug convictions. Warner, who has a lengthy criminal history that includes drug, weapons and resisting arrest convictions, is serving a 50-year prison sentence under the state’s habitual offender law.

It is unclear whether Cannizzaro’s office will pursue the separate charge of felony in possession of a firearm related to the 9th Ward shooting. No gun was found; the possession charge was based on the fact Burton got shot.

In the meantime, Warner’s lawyers are appealing the drug convictions, arguing in part that the bad shooting prosecution should nullify them.

The argument, said Reingold: “If the jury believed at least somewhat that Mr. Warner was involved in the alleged shooting, it seems difficult for them to have separated that from their determination about if he was involved in the drug case.”

That logic failed to win over Buras. In the meantime, whether Cannizzaro’s office retries Warner for the shooting will likely depend on the outcome of that appeal.